Will Elena Kagan use International Law as Supreme Court Justice?

William A. Estrada, Esq.
Director of Federal Relations

Melanie Palazzo
Congressional Action Program Director

June 24, 2010

This past April, U.S. Supreme Court Justice John Paul Stevens announced his retirement. Stevens was appointed by President Ford in 1975. President Obama has since nominated Elena Kagan, current Solicitor General, to replace Stevens on the bench.

It is expected that the U.S. Senate Judiciary Committee will begin confirmation hearings on Elena Kagan sometime the week of June 28. HSLDA is concerned by some of Kagan’s past writings regarding international law, and its use by U.S. judges.

When Kagan was the dean of Harvard Law School, one of her chief accomplishments was requiring students to take classes in international law during their first year of law school. The reasoning behind this change was revealed in a memo to the Harvard Law School faculty written in 2006 by Dean Kagan and other professors:

Coursework in this area (International/comparative law) should become part of the first year program because, from the start, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe—global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems. Specifically, we recommend the development of three foundation courses, each of which would satisfy the requirement, and each of which represents a door into the global sphere that students will use as context for U.S. law.

When Harvard Law School added international law as a required course, U.S. Constitutional Law became an elective class. This move—and the quote above—seems to demonstrate that Kagan believes courts should look to international law and the laws and precedents of other countries as the lens to use in examining our own Constitution and founding legal documents.

HSLDA believes that this philosophy will come in direct conflict with a Supreme Court justice’s role. Judges should not look to international law and the decisions of foreign nations in order to interpret the U.S. Constitution and apply it to disputes today.

As the Senate begins Kagan’s confirmation hearings, senators need to ask about her views on this important issue. Senator Chuck Grassley (IA) recently explained, “It’s our duty to ensure that the SCOTUS [Supreme Court of the United States] candidate understands the proper role of the Supreme Court in our system of government and will be true to the Constitution and the laws as written.”

How would use of international law hurt homeschoolers?

The Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) are two United Nations treaties that have been signed by the United States, but have not been ratified by the Senate. These are dangerous treaties because they would severely restrict parental rights and homeschooling. If the CRC were to be ratified by the Senate, the government would have the ability to override every decision made by parents by asserting the parents were not acting in the best interest of the child. The United States is one of the few countries in the world that have not ratified these treaties. (For a more detailed analysis of the CRC, please see the links below.)

Although the U.S. Senate has not ratified these treaties, we are very concerned that U.S. Supreme Court justices may attempt to incorporate these treaties into their decisions as customary international law. It would be perilous to parental rights to have a justice on the court who values foreign treaties above the U.S. Constitution because whenever a justice uses an unratified treaty in a Supreme Court decision, the treaty becomes precedent—a precedent lower courts can use.

We have strong concerns that based on Kagan’s past writings and work, she believes that judges should use international law and treaties in their decisions. If you share these concerns, we encourage you to call your two U.S. senators and ask them to question Kagan during her confirmation hearings about the U.N. Convention on the Rights of the Child, and what role she believes international law should play in supreme court decisions.